The “fake news” discussion is everywhere today. Even United States’ President Elect Donald Trump, who himself seems to be keen on spreading news with rather questionable credibility, has given the matter a new dimension in his tweets. But what is fake news from a legal point of view in the first place? The Cologne-based attorney Mr Christian Solmecke, who is specialized on internet law now attempts to clarify the legal background of the discussion:

To begin with, “fake news” has no specific legal meaning. It is a broad term used in social networks and the media to describe untrue information of all kind. Legally speaking, it is important to differentiate. Individuals, who wish to defend themselves from false news, have different options under the applicable German laws. In particular:

1. Untrue factual allegations

Untrue factual allegations have been subject to numerous court proceedings for decades now. They relate to untrue information about a specific person. Unlike the expression of opinion, which is largely protected by the constitutional freedoms of expression and press, an individual may of course take legal action against false or not proven factual allegations. A well known example is an allegation about Renate Künast, who is said to have allegedly showed sympathy for a refugee in December 2016, who in turn killed people. Ms Künast can take civil action against this allegation by means of a cease and desist claim, a demand to remove the allegation from the relevant sources and a damages claim. The same liability applies to individuals who support or share the allegations in social media.

2. Insult, Defamation, Slander

False news often aims at discrediting other people because of their different views. Such fake news about specific individuals may constitute a criminal offence, namely insult, defamation or slander.

Insult means declaring a lack of respect and disregard to others. For instance, this is the case when calling someone else an “asshole” or “idiot”. But intentionally putting forward a false allegation about someone else may also constitute insult. Defamation is present when someone makes or spreads a disparaging, untrue factual allegation about someone else. The offender must not necessarily be aware of the fact that the allegation was false. If indeed the offender is positively aware of this, a case of slander is present. In case of such criminal offences, high penalty fines, or indeed a long term prison sentence may be imposed. The victims may file a report with the prosecuting authorities. From a civil law perspective, cease and desist and damages claims are possible.

3. Incitement of the masses

Furthermore, there were numerous false reports in the past, which were not aimed at a specific individual but rather entire community groups. Such reports are also “fake news”, which, legally speaking may constitute incitement of the masses. This is a serious criminal offence, punishable by a prison sentence of up to 5 years.

4. Conspiracy theories

The landing on the moon was clearly not the start of conspiracy theories. Allegations about various events are often made, which are sometimes difficult to comprehend. Such conspiracy theories may of course be factually false, which is the case more often than not. In such cases, laws against unfair competition may help. As long as the requirements are met, competitors may issue warning letters for such theories and make, among others, cease and desist claims.

5. False allegations with a commercial background

Businesses often make allegations, claiming to be “the biggest” producers of a specific product range worldwide. Such allegations may of course be wrong as well. The rules against unfair competition are applicable here too. As long as the requirements are met, competitors may issue warning letters and make, among others, cease and desist claims.

6. False allegations aiming at political propaganda

Fake news, which does indeed require further regulation is false information used for political propaganda. In this case, false allegations in relation to political events may be made on purpose to influence the political mood of the people. For instance, false information in regards to the actual number of asylum seekers or made up stories from everyday life (Asylum seeker beats up a peaceful old lady) may be spread. Such false news can hardly be challenged legally, which is why politicians and experts see potential new regulations as necessary. In this respect, there is an ongoing effort to introduce new legislation.

In these cases, a kind of a “Truth Commission” may be established to investigate the contents of such information and, in case of false allegations, take steps against the propagator. In practice, I don’t think this would be a viable solution though. We must live with such false information in future and hope that critical journalists keep on exposing such stories. The possibility to comment on social media also contributes to revealing false news.

As a conclusion, it can be stated that there is currently no need for a change in the legal system in relation to false information. The existing laws must be implemented more strictly and the prosecuting authorities trained better to deal with such situations. Furthermore, actions against social media must be made more effective as only when Facebook and Co. fulfill their existing obligations can false news be battled with the help of the existing laws effectively as well.

Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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